I recently wrote a paper for my Licensing Intellectual Property course which I’ll be sharing on this website as a 4-part blog post. Here’s the breakdown:
- Analysis of Digg’s Terms of Use
- Analysis of Twitter’s Terms of Use
- Analysis of Reddit’s Terms of Use
- Suggestion for an Ideal Social Media Terms of Use Agreement
Without further adieu, Part I:
Digg is the quintessential social media site. Users submit third-party content and other users vote on which content should be displayed on the front page. While a discussion of the algorithm and intricacies of Digg could comprise its own paper, I will once again focus my efforts on interesting portions within their user license agreement.
Digg reserves the right, at its sole discretion, to modify or replace the Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, Digg will notify you by posting an announcement on the Site. What constitutes a “material change” will be determined at Digg’s sole discretion, in good faith and using common sense and reasonable judgment. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by you following such notification constitutes your acceptance of the terms and conditions of the Terms of Use as modified.
This is an important consideration. The first question that should be addressed is: is it necessary to notify the users at all when the license agreement has changed. Presumably, viewers of the website are subject to the agreement just as registered users. This means that they were expected to find the link at the bottom of the site to the Terms of Use Agreement. While it would be unreasonable to make users view the Terms of Use every time they visit the site, it seems possible that Digg could technically get away with giving little to no notice of a change in the license agreement. On the other hand, no notice of changes could make the TOU appear illusory.
The decision to only publicize material changes as determined by the website is an interesting choice given the recent Facebook Terms of Use controversy.1 In my experience, the public generally aren’t concerned with any website terms of use unless explicitly brought to their attention; this could be interpreted to mean either that the public generally do not read license agreements, or they simply do not feel affected by the one-sided terms. On the other hand, giving the website the sole discretion to decide which changes are “material” might seem illusory to a court.
As a condition to using Services, you are required to register with Digg and select a password and screen name (“Digg User ID”). You shall provide Digg with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your Digg account. You may not (i) select or use as a Digg User ID a name of another person with the intent to impersonate that person; (ii) use as a Digg User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a Digg User ID a name that is otherwise offensive, vulgar or obscene. Digg reserves the right to refuse registration of, or cancel a Digg User ID in its discretion. You shall be responsible for maintaining the confidentiality of your Digg password.
There are many reasons why these terms are useful: first, you want to know the identity of your users in order to prevent multiple accounts in the same name from being opened. The purpose of social media is to gauge the reaction of the website community with respect to a particular subject, and if one person is allowed to vote multiple times, the results are skewed. Additionally, having accurate registration information will likely assist in targeted marketing campaigns.2
The limitations on the user ID are clearly employed to limit liability. It seems like they are attempting to minimize right of publicity claims and obscenity claims. With respect to the First Amendment, children have more limited rights, and being that Digg and most websites allow children above thirteen to join, they must restrict indecent language.
Digg may remove any Content and Digg accounts at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. To report Terms of Use abuse, please email: abuse@digg.com
It seems obvious that social media sites would reserve the right to remove user content, but it is a good idea to be transparent about their intentions within the license agreement. Surely users do not expect that they have a right to keep their own information on a third-party site for an indefinite period of time (or really any period of time), but I would recommend the incorporation of similar language into any social media website’s license agreement in the interest of transparency.
By submitting Content to Digg, you warrant that you own all rights to the Content, agree that the Content will be dedicated to the public domain under the Creative Commons Public Domain Dedication, available at http://creativecommons.org/licenses/publicdomain/ and that you will not object to the use of the Content by Digg in any context. To clarify, the above does not apply to the Content on external sites linked to by the original submission.
As hard as I try, I cannot figure out the reasoning behind this term. While it is completely reasonable for a company to want a stake in its user generated content, that is easily accomplished by way of a stipulation that users give to the website a perpetual, royalty-free license to copy, adapt, or create derivative works of the uploaded content. Here, Digg has elected to simultaneously gain the ability to use user-generated content while divesting the user of their original content for seemingly no reason.
I would strongly recommend that social media sites take the Twitter route if they are so inclined, and merely suggest donating to the public domain rather than require it. To some users, this type of contract term might seem borderline malicious. While it might seem relatively harmless at its face, consider the following example: I hired an artist to create a series of images for me to use with my websites. I used one of these images as my Digg avatar, meaning that it appears next to my Digg username. According to the Digg license agreement, I am now obligated to use that image under the public domain. In my perhaps not to humble opinion, this is one of the most one-sided contract terms that I have seen.
You will indemnify and hold harmless Digg, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damage or cost (including reasonable attorneys. fees and cost) from (i) any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, violation of the Terms of Use by you, or the infringement by you, or any third party using your account or Digg User ID, of any intellectual property or other right of any person or entity.
If memory serves, indemnity clauses are usually upheld unless they attempt to disclaim liability for intentional actions or they’re contrary to the public policy. In my view, companies may as well attempt to include an indemnity clause. It users are willing to agree to donate their works to the public domain, they are probably willing to relieve the company of liability for their actions. Most users probably assume that they act in accordance with the law, so an indemnity clause won’t affect them.
The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Digg has no control over such sites and resources, you acknowledge and agree that Digg is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Digg shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
This is a very important clause which is not present in the large majority of social media websites. Because the purpose of a social media sites is essentially to share links to third-party websites, the social media website should take some steps to disclaim liability for third-party websites linked through their portal. For example, a user submits an interesting website to digg, the article makes the front page and is seen by 200,000 people, and it turns out that the website was infected with an internet worm that destroys millions of networks. Digg clearly shouldn’t be liable for that damage,3 but in order to ameliorate the possibility of vicarious liability, they have taken steps to explicitly disclaim it.
- Cf. Legal Geekery, http://legalgeekery.com/2009/02/23/cyber-riots-and-facebook-tos/ (last visited April 26, 2009). [↩]
- For instance, through sharing information with partner sites, Digg may be able to determine my interests from Amazon or Facebook and target ads to me more efficiently. [↩]
- And likely aren’t given the CDA jurisprudence [↩]
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